State of New Jersey v. JOHN L. NYHAMMER (A-5672-04T4)

(Link for complete ruling in PDF format at bottom of page.)

Submitted May 2, 2007 - Decided - September 6, 2007

Crawford & Miranda Errors Require Reversal of Child
Sexual Assault Conviction
The case is attached.

[09/11/07 - 9:36 pm] Two critical trial level errors have resulted in the
reversal of a child sexual assault conviction in State v. Nyhammer. Last
Thursday, the Appellate Division ruled that a videotaped statement of the
child victim should not have been admitted in evidence under the so-called
"fresh complaint" exception to the hearsay rule, NJRE 803(c)(27). The Court
found that the statement was testimonial within the meaning of Crawford v.
Washington. The child had not been subject to previous cross-examination and
refused to provide either direct evidence or be subject to cross examination
at trial.

The Defendant's confession should also have been suppressed on Miranda
grounds, according to the Appellate Division.

In Nyhammer, the defendant was summoned by the police to headquarters in
order to provide information that he might have as a witness to the sexual
assault of a child committed by a person the defendant knew. The police did
not reveal to the defendant that in addition to the information he might
possess as a witness, he was also suspected by the police of having
perpetrated a series of sexual assaults as well.

The defendant voluntarily reported to headquarters for the purpose of making
a witness statement. He was initially given his Miranda warnings[1] by the
police, waived his right to remain silent and was questioned about what he
knew about the sexual assaults committed by another person.

During the course of the interrogation, the police shifted the focus of the
interview and confronted that the defendant with evidence that he himself
had been subject to sexual abuse and had sexually abused the same child
victim. These allegations by the police had a devastating impact on the
defendant, causing him to become extremely distraught and brought to tears.
The police continued to confront the defendant with this evidence. As a
result, the defendant confessed to having sexually assaulted the child
victim as alleged by the police. His confession was electronically recorded.

At trial, the judge admitted the defendant's confession, finding that his
initial waiver of the right to remain silent after being advised of his
Miranda rights at the start of the interview rendered his subsequent
confession knowing and voluntary. The Appellate Division reversed, holding
that when the defendant was initially advised of his rights by the police,
he believed he was being interviewed merely as a witness. This false
perception was encouraged by the police. Accordingly, at the point where the
focus of the interview changed from merely investigatory to accusatory, the
police should have re-administered the defendant's Miranda warnings. The
failure of the police to do this rendered the confession involuntary.

Click here for the complete ruling in State of New Jersey v. JOHN L. NYHAMMER (A-5672-04T4) in PDF format.